Appointing a lieutenant governor is a matter of law

Both parties say New York law supports their stance on the governor's power to appoint a lieutenant governor.

The case against Paterson's authority:

(From the state Constitution)
"... In case of vacancy in the office of lieutenant governor alone ... the temporary president of the senate shall perform all the duties of lieutenant governor during such vacancy or inability."
"If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office or the temporary president of the senate shall be absent from the state or otherwise unable to discharge the duties of governor, the speaker of the assembly shall act as governor during such vacancy or inability."

The case for Paterson's authority:

(From the Public Officers Law)
"If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election."

Attorney General Andrew Cuomo's view:

The State Constitution explicitly prescribes what occurs when there is a vacancy in the Office of Lieutenant Governor. In such circumstance, (it) states that "the temporary president of the senate shall perform all the duties of the lieutenant governor during such vacancy ..."

... Constitution expressly provides that "the lieutenant governor shall be chosen at the same time, and for the same term" as the governor. The Legislature did not authorize a governor to bypass this provision of the Constitution and fill a vacancy in the office of lieutenant governor pursuant to Public Officers Law ...

That statute, which provides for gubernatorial appointment to fill certain vacancies, applies only when there is "no provision of law for filling the same." With respect to the lieutenant governor, however, the Constitution leaves no gap concerning a vacancy in that office ...

In sum, we understand the apparent political convenience of the proponents' theory due to the current Senate circumstances. In our view, however, it is not constitutional. In addition, contrary to the proponents' goal, we believe it would not provide long-term political stability but rather the opposite, by involving the governor in a political ploy that would wind through the courts for many months.

Precedent:

New York has been without a lieutenant governor three times in recent history.
Gov. Malcolm Wilson was left with no second-in-command after he took over for Gov. Nelson Rockefeller, who resigned in 1973.
Gov. Mario Cuomo had no lieutenant governor for two years. Neither Wilson nor Cuomo believed he had the power to appoint a new lieutenant governor.